Updates, news, and musings on the latest developments in white collar crime defense, government investigations, and enforcement actions

by Ariel A. Neuman

No Warrant Required to Pull Your Cell Phone GPS Data. Yet.

No Warrant Required to Pull Your Cell Phone GPS Data. Yet.

November 2015

The Supreme Court yesterday refused to hear a challenge to law enforcement’s collection of cell phone GPS data (known as cell-site data) without a warrant. http://www.entrepreneur.com/article/252654. Instead, that data (at least for now) can be gathered from your cellular service provider with either a subpoena or even just a simple request.

This is a different issue than last year’s Supreme Court case, where the justices ruled that a warrant is necessary if law enforcement wants to look at the contents of your phone. http://www.cnn.com/2014/06/25/justice/supreme-court-cell-phones/ Last year’s case was all about the data that is contained on your device itself. Now the question is whether we as citizens have a reasonable expectation of privacy in data collected by our big brothers (i.e., Verizon, Sprint, T-Mobile, etc.). We all know they are tracking us, but can the government grab that data?

Turns out the answer is yes, for now. This issue has been percolating through the courts, with any findings that a warrant is required being reversed. In fact, just two weeks ago, the Fourth Circuit agreed to an en banc review of a three-judge panel’s decision that warrants are needed in these situations (meaning, a lot more judges are going to review the issue, and for now there is no requirement of a warrant). https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/10/29/fourth-circuit-grants-rehearing-eliminates-split-on-cell-site-surveillance/. As the linked post notes, this decision eliminated the circuit split caused by the three-judge panel, which made it all the easier for the Supreme Court to punt yesterday.

Where is this heading? Stay tuned. It took the justices imagining that any cop who pulls them over for speeding could go digging through their text messages and emails to require a warrant for searches of cell phones. It’s probably a lot less likely that they can imagine (or are worried about) having law enforcement pull their cell phone GPS data. And as some circuit judges have held, in their view, it’s no different than having a surveillance unit tail you. http://blogs.wsj.com/law/2012/08/14/sixth-circuit-no-expectation-of-privacy-in-cell-phone-gps-data/ Right?